Wright Motors, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1975

216 N.L.R.B. 279 (N.L.R.B. 1975)

WRIGHT MOTORS, INC.
Wright Motors, Inc. and Local 215, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Case 25-CA-
6576
January 23, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a charge filed on October 2, 1974, by Local
215, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on Wright
Motors, Inc., herein called the Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 25,
issued a complaint on October 10, 1974, alleging that
Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and ( 1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and
notice of hearing before an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on October 19,
1973, following a Board election in Case 25-RC-
5320, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate ; I and that,
commencing on or about July 17, 1974, and at all
times thereafter , Respondent has refused , and con-
tinues to date to refuse , to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On October 17, 1974, Respondent filed its
answer to the complaint admitting in part, and
denying in part , the allegations in the complaint.
On November 1, 1974, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and to strike portions of the
Respondent 's answer to the complaint . Subsequently,
on November 19, 1974, the Board issued an order
transferring the proceeding to the Board and a
Notice To Show Cause why the General Counsel's
Motion for Summary Judgment should not be
granted . Respondent thereafter filed a response to
Notice To Show Cause.
1 Official notice is taken of the record in the representation proceeding,
Case 25-RC-5320, as the term "record" is defined in Secs. 102.68 and
102.69(8) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1%7), enfd . 388 F.2d 683 (C.A. 4,
216 NLRB No. 50
279
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause, Respondent opposes the
instant motion on two grounds. First it argues that
the certification issued the Union in the underlying
representation proceeding is invalid because chal-
lenges to two ballots therein were erroneously
sustained, or that a hearing is required thereon.
Second, Respondent argues that this proceeding is
barred by Section 10(b) of the Act because its alleged
refusal to bargain occurred more than 6 months prior
to the filing of the charge and moves for Summary
Judgment and dismissal of the complaint on this
basis. The General Counsel, in support of his motion,
argues that the issue concerning the challenged
ballots was litigated in the representation proceeding
and thus may not be relitigated herein, and that this
action is not barred by Section 10(b) because the
Union's request to bargain was within 6 months of
the filing of the charge. On essentially the same
grounds, the General Counsel also moves to strike
those portions of Respondent's answer which put the
above-mentioned matters in issue.
With regard to Respondent's contention that the
challenges to two ballots should have been overruled,
we have reviewed the record in the representation
proceeding, Case 25-RC-5320, to the extent neces-
sary to determine if this issue was litigated therein, as
submitted by the General Counsel. It appears that
the election conducted on June 5, 1973, pursuant to a
Stipulation for Certification Upon Consent Election
resulted in a 14 to 12 vote in favor of the Union, with
3 challenged ballots. After an investigation, the
Regional Director issued a report, inter alia, on the
challenges , recommending that the challenges of two
ballots be sustained as the ballots were cast by
employees who were close relatives of owners and
managers of the Respondent, and the remaining
challenged ballot be left unresolved as it was no
longer determinative of the election results. Re-
spondent filed exceptions to this report, with affidav-
its attached, together with various motions, basically
assigning error to the Regional Director's findings
and recommendations. On October 19, 1973, the
Board issued a Decision and Certification of Repre-
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1957);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative , in which it noted that Respondent's
exceptions raised no material issues warranting
reversal or modification of the Regional Director's
findings and recommendations and adopted the
same , and certified the Union. Thereafter, Respond-
ent filed further exceptions and a motion to reconsid-
er the Board 's ruling, asserting that the representa-
tion proceeding should be consolidated with pending
unfair labor practice proceedings for hearing, and
noting that the Board had erred in its designation of
one of the employees whose ballot had been
challenged. On November 6, 1973, the Board denied
Respondent 's motion as it did not contain anything
not previously considered by the Board, and correct-
ed the inadvertent error in its previous decision.
It thus appears that the General Counsel 's position
is sound , as the issues concerning the challenged
ballots, including the hearing thereon , were raised
and considered in the underlying representation
proceeding.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding.
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
With regard to Respondent 's contention that this
proceeding is barred by Section 10(b), we note that
the complaint alleges that the Union requested
bargaining with Respondent on January 30, April 2,
and July 8, 1974, and that Respondent refused to
bargain on February 1, April 2, and July 17, 1974,
respectively . In its answer to the complaint, Re-
spondent denies the April 2 , 1974, request and
refusal, but does not dispute the July request and
refusal which are also supported by uncontroverted
letters of the Union's request and Respondent's
refusal bearing the July dates attached to the
complaint as exhibits. Inasmuch as the charge was
filed on October 2, 1974, some 3 months after the
Union's request and Respondent 's refusal to bargain,
and as the duty to bargain upon request is a
continuing one,3 we find no merit in Respondent's
contention. Accordingly, Respondent's Motion for
Summary Judgment and for dismissal of the com-
plaint are hereby denied.
In view of the foregoing determinations, we shall
grant the General Counsel's Motion for Summary
Judgment and motion to strike those portions of
Respondent 's answer raising the issues resolved
herein.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is an Indiana corporation with its
principal office and place of business located in
Evansville , Indiana , where it is engaged in the sale,
service, and distribution of new and used cars,
accessories , parts, and related products . During the
past 12 months , a representative period, Respondent,
in the course and conduct of its business operations,
sold and distributed products, the gross value of
which exceeded $500,000. During the same period,
Respondent shipped and transported products val-
ued in excess of $50 ,000 from its place of business in
interstate commerce directly to States other than the
State of Indiana. During the same period , Respond-
ent received goods valued in excess of $50,000
transported to its place of business in interstate
commerce directly from States other than the State of
Indiana.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 215, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective -bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
7 See Pittsburgh Plate Glass Co. v. N.L.RB., 313 U.S. 146, 162 ( 1941); 3 Louisiana Bunkers, Inc., 163 NLRB 656,659 (1%7).
Rules and Regulations of the Board , Sees . 102.67(1) and 102.69(c).
WRIGHT MOTORS, INC.
All mechanics , body men , painters , general
laborers, partsmen and service writers employed
by the Employer at its Evansville, Indiana
establishment : but excluding all office clerical
employees, dispatchers , all professional employ-
ees, all guards , and supervisors as defined in the
Act.
2. The certification
On June 5, 1973, a majority of the employees of
Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional
Director for Region 25 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on October 19, 1973, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about July 8 , 1974, and at all
times thereafter , the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about July 17, 1974, and continuing at
all times thereafter to date , the Respondent has
refused, and continues to refuse , to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly , we find that the Respondent has,
since July 17, 1974, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that , by such refusal , Respond-
ent has ' engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above , have a close,
intimate , and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commer-
ce.
V. THE REMEDY
281
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request , bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit , and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit . See Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57,(C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, ' makes the following:
CONCLUSIONS OF LAW
1. Wright Motors, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local 215, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All mechanics, body men, painters, general
laborers, partsmen and service writers employed by
the Employer at its Evansville, Indiana establish-
ment: but excluding all office clerical employees,
dispatchers, all professional employees, all guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since October 19, 1973, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about July 17, 1974, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Wright Motors, Inc., Evansville, Indiana, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Local 215, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All mechanics, body men, painters, general
laborers, partsmen and service writers employed
by the Employer at its Evansville, Indiana
establishment: but excluding all office clerical
employees, dispatchers, all professional employ-
ees, all guards, and supervisors as defined in the
Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached , embody such understanding in a
signed agreement.
(b) Post at its Evansville, Indiana, facility copies of
the attached notice marked "Appendix"4 Copies of
said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Local
215, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All mechanics, body men, painters, general
laborers, partsmen and service writers em-
ployed by the Employer at its Evansville,
Indiana establishment: but excluding all
office clerical employees, dispatchers, all
professional employees , all guards, and
supervisors as defined in the Act.
WRIGHT MOTQRS, INC.